Vanessa Place’s The Guilt Project: A Conceptual Review

I am a criminal defense appellate attorney. I represent indigent sex offenders and sexually violent predators, all on appeal from felony convictions in the State of California. I have also supervised or otherwise assisted a number of other attorneys representing indigent appellate defendants. All told, I’ve been involved in about a thousand felony cases….

It’s a cliché that that a society is judged by how it treats its most despicable members, a cliché that mindful people accept in the abstract and reject in practice. But freedom of speech is relevant only when the opinions are vile, and due process meaningful only when applied to the daddy who rapes his son. (1)

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Sex offenders are our most despised citizens. (1-2)

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What I’ve learned from my job is that all of us are born mid-conversation: whatever culture we swing our hips to informs the way we frame and view our law and order. Not just because the legislators and lawyers and judges and jurors watch the same TV shows as you do, or because there is a cultural loop in which news stories are consumed and regurgitated as plotlines that are consumed and regurgitated as new crimes, but because people who came of age beginning in the 1970s are the legislators, lawyers, judges, and jurors of today…. (2)

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We were taught that rape laws needed constant strengthening because victims, always innocent, needed to be perpetually favored against defendants, who were the unproven guilty. We were told that for every molestation that we knew of, there were thousands we did not, and for every rapist sentenced (to some nominal prison time) there was a worse one still skulking about. We made our laws harsher and our standards of proof easier and were surprised at the corresponding increase in crime. We now stand thigh-deep in this cultural and legal stew, and the muck is rising. If there are more rapists and molesters than before, it’s not only because the law makes more of them, it’s because we all do. (2-3)

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Consigned to the bottom of the criminal heap, sex-offenders are the most loathed of the loathsome. We require them to register with police post-release, commit them involuntarily to mental institutions post-sentence, and add a life sentence for each illicit penetration. But robbers return to prison more regularly than rapists. (3)

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[Around 1987, former prostitute and] anti-pornography activist Andrea Dworkin’s analysis of patriarchal erotics in her book Intercourse led to her conclusion that sex as commonly conceived could never be considered consensual. Quickly nutshelled into the adage “sex is rape,” this concept seemed an endgame to radical feminism and legal reform. If all heterosexual sex was rape, then reformation, like the revolution, could only be cultural. (5)

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Child molesters used to be the shadow lurkers and tot snatchers of M or A Tree Grows in Brooklyn: the stranger you weren’t supposed to talk to, the man with the candy you shouldn’t take. This is still the most popular cultural image. The media prefer to focus on the statistically rare tragedy of a five-year-old being kidnapped, raped, and murdered by a passerby than to report the more common horror of habitual incest. But the crime of child molestation includes not only the predatory uncle or familiar friend, but eighteen-year-olds who have agreed-upon sex with fourteen-year-olds, eleven-year-olds who fondle ten-year-olds, and fifteen-year-olds appropriately groping each other. This categorical elasticity means there are now more rapists and molesters among us. There may be more people willing to report being raped, but there are also more behaviors classified as rape, more ways to become a rapist or molester than every before. We think we’re surrounded, but we’ve surrounded ourselves. (6)

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What is done in the dark by criminals is bad, but what is done by the light of the law can be worse. (7)

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…I work for the guilty. That is, the legally guilty, those who have been convicted. I understand that my clients who are factually guilty had no right to do what they were convicted of doing. The legal question that concerns me is, did the state have the right to take the essence of these people’s lives ? [by sentencing them to millennial terms in prison, etc.] The moral question that concerns me is, how many lives are being sacrificed to a series of social expediencies, or to cultural arguments that have already been won? (9)

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People tell me that they can’t discuss sex offenders or sex offenses because of their profound disgust for these crimes. This repugnance to an obvious evil is presented as a source of pride, an ethical merit badge. But the sinful pride lies in our putting sex offenders in a category of evil that allows us to define ourselves in opposition to them. (10)

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I’ve spent the bulk of my working life doing criminal appeals, always for the indigent, always for the defense. But I started out on the more popular side, the one stocked with sheep and lambs — the prosecution. Twenty years ago, when I was a shiny new lawyer, I worked for the Los Angeles city attorney’s office for an extraordinarily brief time: a year and change. . . .

Soon after that, I decided I didn’t want to represent the government anymore. Too much hate. Like an abstract painting, all elements except the surface had been stripped from any situation. There was Our Side and Their Side, and ours was Pure Good and theirs was Pure Evil. Witnesses and victims rightly hated perpetrators, but prosecutors and police were merciless. Cruel as a matter of course, in the petty ways that cruelty is most easily and pettily expressed. (15)

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This Just In!

There’s money to be made in the game, big money. Like the public school system, the prison industry is increasingly privatized…. But crime today finds its greatest immediate reward in the entertainment industry. Shows like Dateline: To Catch A Predator produce child molesters for live TV. Newspapers and cable news networks feed off the horrible travail of the child du jour. Will she or he be found? Maybe, says the Sheriff. Possibly, says the Legal Commentator. Please, says the Mother. They’ve got the dogs out now, and neighbors are fanning the woods.

This just in! It’s hour sixteen, and hope is dying along with the victim, minute by agonizing minute. Meanwhile, there’s a teaser for some new show featuring Real Life Victims, Real Life Perpetrators, Real Life Jurors and Judges and Lawyers. Real Life Suffering, Real Tears, served fresh and hot from the cheeks of the Permanently Injured.

This just in! A new interview with the Father, his eyes swollen from sobbing, he’d like his young one returned, followed by expert commentary on the statelessness of the parents and the reminder that homicidal pedophiles are no one’s friend. Remember, too, to watch that episode of Law & Order, and there’s bound to be something similar on Court TV, and also tons of CSI to whet the armchair appetite.

This just in! Little Ill-Fated has been found in a culvert, throat cut and underpants in a knot. And on and on it goes, through the eventual capture of the Monster who did it, and his trial and sentencing, and the legislative hearings and public proclamations featuring the Parents of the Victim, who say, as Victims now must, “Never Again,” as if pedophilia, like fascism, is a movement that must be stopped. But Never Again becomes Again Again as soon as a new Megan or Brittany is snatched. And again, politicians promise a different end to the story if only Megan’s or Brittany’s Law is passed, a draconian law they are proud to sponsor, the way Phillip Morris once proudly sponsored I Love Lucy.

Does this recap feel offensive? It should. Because in all this haymaking, in which corpses and criminals serve as commercial compost, there are hardly any people. Not real people, anyway. Just a clutch of icons—those individual examples of our archetypes that stand for and against humanity, that implicate us only by way of the extremes of absolute innocence (the forever five-year-old) and ultimate evil (the soulless kiddie-raper). (21-22)

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Paraphilia is a generalized term taken from the Diagnostic and Statistical Manual of Mental Disorders… published by the American Psychiatric Association (APA). . . .

According to the DSM-IV, paraphilia is an umbrella term for a number of disorder categories, including pedophilia, zoophilia, exhibitionism, and fetishes, categories whose salient characteristics is a desire for sex without consent, whether actual (an animal can’t really consent) or legal (a child’s consent is invalid). (Rape may be) clinically designated as Paraphilia Not Otherwise Specified (paraphilia NOS). (That is,) a preference for nonconsensual sex, that is, rape.

To be diagnosed with a paraphilia, someone must evidence the desire for at least six months, and the desire must cause that person “significant social discomfort.” (61-62)

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To prosecute an eighteen-year-old for child molestation based on consensual sex with a thirteen-year-old perverts the concept of perversion. To prosecute a fourteen-year-old for messing about with a thirteen-year-old is a farce wrapped around a tragedy. . . .

[T]he law furthers the idea that everyone under the age of consent must be absolved from all sexual responsibility. There is a creepy puritanism here, a feeling that sex itself is wrong, and that, in terms of underage sex, there are only two sexual roles: victim and perpetrator. The State officially approves abstinence, and where abstinence fails, official criminalization follows. (87-88)

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Prisons must be populated, and it is a popular things to populate prisons. Voters, as the phrase goes, “overwhelmingly” support any crackdown on crime. This makes it easy to criminalize, or increase the criminality of, offensive behavior. (Let us leave aside what constitutes offensive behavior, though the category is evidently procrustean, sized according to social mores that are deemed morals (e.g., marrying whites and Negroes, renting to one when the building was mostly occupied by the other, two people of any sex and race fornicating extramaritally).) (89)

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The elevation of the crime of child pornography was not quite so great as press and politicians made out: the offense went from a straight-up misdemeanor to what’s called a “wobbler,” a felony that can be sentenced either as a misdemeanor or a felony, depending on the judge. The sacrificial lamb motivation and justification for making possession a potential felony was provided by the parents of “Courtney,” a twelve-year-old who was raped and murdered six years earlier. The killer had been involved in child pornography, and, the logic goes, had he been arrested on (and presumably convicted of) that charge (as a felony) he might not have gotten to the kidnap-rape-murder stage of sex offending. The same rationale was once used for felonizing possession of marijuana, though the rules are more lax for the oils extracted from it -that it would stunt the future crop of dope fiends. Let’s agree that child pornography-real child pornography, the stuff that differs from its adult version only in levels of body hair and the size of the protuberances-is an abomination. Its production a crime in itself, as its creation documents a molestation, and its dissemination exponentially furthers the abuse. But possession, purely private possession, of something called child pornography may be something else. And that something else may be a concern for us as a society, but may not be something we want to feed our state prisons with.

Let’s also clarify terms: child pornography in the popular cultural imagination is a seven-year-old shown giving a man a blow job, that is, hard-core porn involving young children. Child pornography as statutorily defined in California is any medium depicting someone under the age of eighteen “personally engaging in or simulating sexual conduct,” sexual conduct defined as intercourse, any vaginal/rectal penetration by any item, masturbation “for the purpose of sexual stimulation of the viewer,” sadomasochistic abuse for that same purpose, “exhibition of the genitals or the pubic or rectal area of any person for the sexual stimulation of the viewer,” defecation/urination for the purpose, et cetera. Possession of child pornography is having the stuff and knowing the person depicted is under eighteen. This has led, on more than one occasion, to police experts testifying about the relative ages of male Thai actors, and medical doctors testifying about buds versus non-buds, and stop-motion analyses of pubic development. Though it would seem that if you’re counting hairs, the issue of knowledge of the actor’s majority is up for grabs. (But please note the cutoff age is eighteen. Legally, kiddie porn also includes the murkier area of money shots involving fifteen-, sixteen-, or seventeen-year-olds.)

The “exhibition of genitals” provision is the most problematic, or used to be, back when film kiosks were forever turning in photos of four-year-old Billy’s bum arched enticingly skyward as he showed off his pantless cartwheel, or three-year-old Anyesha standing spread-leg proud staring at the camera in her Mama’s (too cute) bra top and no panties. Depending on the camera eye level, the cops would visit the parents and, depending on the home creep factor, (a) hook them up and toss them into the grinning maw of justice; (b) scare them silly with the possibility of (a); (c) scare them silly with the possibility that unscrupulous photo-kiosk employees could be hawking snaps of Billy/Anyesha to the salivating pedophile community; (d) explain to them patiently the facts of life relative to (b) and (c), and back in the squad car, wonder “What the hell were these people thinking?”

The fact is, there is very little commercial hard-core child porn produced these days. Most of the gunk your spam filter catches consists of young-looking young women and men dressed or undressed up as youth with titles that fabricate their minority. (My quick Google search for “teen porn” results in 4.12 million hits, “teen girl porn”

2.01 million hits, “virgin porn” 1.65 million, “schoolgirl porn” 1.39 million, and the catchall, “young girl porn” 4.90 million.) So the average kiddie porn connoisseur is a ham-handed fellow with a generous imagination and a willingness to go along for the ride. Whereas the hard-core kiddie porn connoisseur is hooked up via the Internet to private file sharing featuring real live little girls and boys.

A fair amount of the hardest child pornography involves certain photos that have been circulating and recirculating for years, and the bulk of the new porn is homemade. Anyone with a taste for molestation, a digital camera, and a computer can become a child pornographer, which is why the kiddie-porn connoisseur is hardly ever nabbed for simple possession. Like the dope fiend, there’s another reason he comes to the attention of law enforcement, and it’s usually the nastier allegation of sexual abuse, or production/dissemination of child pornography. So the possession charge is almost always an ancillary charge, enabling prosecutors to plea-bargain a bit, or allowing the State to slap on an extra three years per image onto that twenty-five-to-life sentence. And if kiddie-porn possession was the only charge of conviction, there’s no reason in the world to believe that conviction would deter a murder. There are many shoplifters. There are many, though not as many, robbers. There are some robbers who, after taking the till, put the barrel of the gun beneath the chin of the store clerk, and shoot. There are some who rape them first. There are some who do worse. There are monsters, and monsters aren’t deterred by a three-year hop in the joint. The only way a felony kiddie-porn rap is going to stop a potential child kidnapper/rapist/killer from becoming a child kidnapper/rapist/killer is if someone happens to shank him in the shower. (90-93)

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The people Karl Marx believed would compose the revolutionary “reserve army of the unemployed” are being culled from the fields and put to work in the Big House. The market needs of late capitalism dovetail too neatly with the cultural need to self-sanctify. And so we have come to live in a society swimming in private porn of the “drunktweensuxcox” variety and public porn of the true-stories-of-true-crimes variety, and still find some common thrill in the trill of moral condemnation while we rent out our surplus population. (103)

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We codify the right to a fair trial in the Constitution because all we have is time. To incarcerate someone is to take away that person’s time, just as to kill someone robs that person of their lifespan. We don’t diminish murder on the grounds that the victim’s life wasn’t worth living: killers of gangbangers and Aryan nationals are to be locked away as tightly as killers of sweet-cheeked infants. To allow our government to imprison people—even very bad people—without making sure that the imprisonment is justified, cheapens our own mortality. (145-146)

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To sentence someone to hundreds or thousands of years in prison makes the ordinary life term meaningless. To sentence someone to a thousand years makes a joke of a life and of its waste. Millennium sentencing also elevates sex crimes above all others, including murder, adding to the illusion that just as his crime is no ordinary offense, the sex offender is no ordinary human. He is a monster, and needs a sentence commensurate with his monstrosity. But as much as we make monsters, we become monsters. . . .

Almost all my clients are serving life-plus terms. Most are doing somewhere between one hundred and two hundred years in addition to life. I’ve had a number of five-hundred-year sentences, several eight-hundred-plus stretches, and two millennial terms. (221-222)